In December 2023, Singapore acceded to the Hague Service Convention[1] (the “HSC“). This is of particular interest to claimants suing foreign defendants in Singapore, as service of Singapore court papers in foreign jurisdictions which have also acceded to the HSC will now in most cases have to be effected through its provisions[2].
While the HSC allows for service of foreign court proceedings via private agents, the reality is that many of the signatory countries (Singapore included) have opted out of allowing such methods. Private parties will usually have to seek the assistance of that foreign jurisdiction’s Central Authority[3] to effect service.
One of the common issues facing claimants is proving that service was effected on the foreign party. Article 6 of the HSC provides for the Central Authority to complete a standard form certificate of service once it is effected, but the HSC is silent on what such a certificate proves or the evidential value of the same.
The Singapore International Commercial Court (SICC) recently had the opportunity to pronounce on this novel issue under Singapore law. In the recent decision of Pertamina International Marketing & Distribution Pte Ltd v P-H-O-E-N-I-X Petroleum Philippines, Inc [2024] SGHC(I) 27, Sir Henry Bernard Eder IJ held that such a certificate issued by a Central Authority, under Singapore law, would be prima facie evidence of effective service of the relevant court papers which would be accepted by the Court, absent strong and convincing contrary evidence. The Court also dismissed the argument that service effected by the Central Authority of the Philippines was invalid under Philippine law and held that where the foreign court certified service (as was the case), it would be almost impossible to say that service was incompatible with the law of that State. The Court declared that service of the Singapore court papers on the second defendant was validly effected.
Prolegis LLC’s Daniel Chia, Ker Yanguang, Charlene Wee and Claudia Chan successfully acted for the claimant, Pertamina International Marketing & Distribution Pte Ltd (PIMD) in these proceedings.
Herbert Smith Freehills Prolegis acted for the claimant in the underlying arbitration, securing an award of more than US$142 million, and is currently coordinating a multi-jurisdiction enforcement strategy. ACCRA Law in Manila has provided Philippines law advice throughout.
Background
The claimant, Pertamina International Marketing & Distribution Pte Ltd (“PIMD“), had successfully applied in the SICC to recognise and enforce the Final Award obtained in an earlier arbitration against the defendants, P-H-O-E-N-I-X Petroleum Philippines, Inc (also known as Phoenix Petroleum Philippines, Inc) and Udenna Corporation (“Udenna”).
PIMD subsequently applied to serve the order granting permission to enforce, along with other court documents, on Udenna in the Philippines via the HSC. The HSC Request stated that Udenna was to be served at an address at Stella Hizon Reyes Road (“SHRR Address“) in Davao City, or elsewhere in the Philippines.
On 22 April 2024, the Sheriff of the Philippines Supreme Court delivered the relevant papers to one Mr Alex Barcos at a different address (“BB Address“). On 23 April 2024, a certificate was issued by the Sheriff on behalf of the Regional Trial Court, Davao City, confirming service of the relevant documents on Udenna on 22 April 2024 (the “Certificate“).
Udenna then applied to the SICC to set aside the attempted service of the court papers and sought a declaration that the order granting permission to enforce had not been validly served on Udenna. Udenna argued that it was not located at the BB Address but the SHRR Address, that Mr Barcos was not an employee or representative of Udenna and is not authorised to receive documents on behalf of Udenna, and that the Sheriff’s service did not comply with Philippine law.
The SICC’s decision
The SICC held that the service of the court papers effected by the Sheriff was valid.
Legal And Evidential Significance Of The Certificate
The Court first considered the legal and evidential significance of the Certificate.
It found that under the HSC, receipt of the Certificate constitutes “authoritative confirmation” that service was effected on Udenna in accordance with Philippine law. Having considered the SICC Rules of Court and the positions adopted in various jurisdictions, including in the US and the UK, the Court held that a certificate of service is prima facie evidence of effective service and should be accepted by the Court, absent contrary strong and convincing evidence.
Service Was Not Contrary To Or Incompatible With Philippine Law
The Court also examined the evidence of PIMD and Udenna’s experts on Philippine law, and preferred the evidence of PIMD’s expert that service effected by the Sheriff was not contrary to or incompatible with the laws of the Philippines. Notably, Eder IJ observed that “where the foreign court itself certifies that the relevant documents have been duly served (as is the position in effect in the present case), it seems to me difficult, if not impossible, to say that such service was contrary to or incompatible with the laws of that foreign State“.
The Court further found that the BB Address was Udenna’s usual or last known place of business. Accordingly, the Court upheld the service by the Sheriff.
Practical Takeaways
In addition to pronouncing on a novel issue of Singapore law, this decision illustrates the potential challenges and pitfalls a party suing in Singapore may face when seeking to serve Singapore court process via the HSC, and how best to overcome these difficulties.
As aptly observed by the Court, a party would not ordinarily be involved in the actual physical process of service once the court papers have been transmitted to a foreign authority. It is therefore imperative for claimants to engage lawyers to ensure that service of court process is valid, including verifying that the requested method(s) of service is not incompatible with the laws of the State addressed.
By ensuring compliance with the Singapore court’s requirements on service of court processes, the Hague Service Convention and the local laws of the State addressed, parties can avoid unnecessary delays, disputes, and potential setting aside of the service.
Parties and their solicitors should be mindful to ensure that the necessary forms for a request for service abroad are comprehensive and appropriately filled out to prevent any potential challenges to service and unnecessary delays in proceedings.
How we can help you protect your interests
Prolegis LLC successfully acted for PIMD in obtaining valid service of Singapore court process through the HSC and resisting the application to set aside the service in the above proceedings. As the Formal Law Alliance partner of Herbert Smith Freehills in Singapore, Prolegis LLC is uniquely positioned to assist you in these matters with our access to a wider network of international offices, which allows us to provide comprehensive advice on cross-border litigation and disputes in the Singapore courts.
To find out more about protecting your interests and our disputes capabilities, please contact the authors below or your usual Herbert Smith Freehills Prolegis contact.
Prolegis LLC and Herbert Smith Freehills LLP (www.herbertsmithfreehills.com) are members of a Formal Law Alliance in Singapore marketed as Herbert Smith Freehills Prolegis (https://www.herbertsmithfreehills.com/content/herbert-smith-freehills-prolegis).
Daniel Chia |
Yanguang Ker |
Charlene Wee |
Claudia Chan |
Carrisa Low |
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Gitta Satryani |
Tomas Furlong |